People v Luckerson

People v Luckerson 2015 NY Slip Op 04228 Decided on May 19, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 19, 2015
Tom, J.P., Sweeny, Andrias, Moskowitz, Gische, JJ.
15100 650/08

[*1] The People of the State of New York, Respondent,

v

Vincent Luckerson, Defendant-Appellant.

Steven Banks, The Legal Aid Society, New York (Jeffrey Dellheim of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Ross D. Mazer of counsel), for respondent.

Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered September 10, 2009, convicting defendant, after a jury trial, of murder in the second degree and criminal possession of a weapon in the second degree, and sentencing him to an aggregate term of 25 years to life, unanimously affirmed.

The court properly exercised its discretion in granting the People's application, based on substantial security concerns, that potential spectators other than defendant's family be required to show identification or provide their names and dates of birth. This procedure was considerably less restrictive than the screening procedure in People v Jones (96 NY2d 213 [2001]), where the Court of Appeals recognized the procedure as implicating the right to a public trial. In Jones, "the court reserved the right to exclude based on its own evaluation of the explanation offered by any individual seeking admission" (id. at 218). Here, all potential spectators who identified themselves were to be automatically admitted, there was to be no "screening" process, and only those who insisted on remaining anonymous would have been excluded.

To the extent this minimal exclusion could be considered a partial closure of the courtroom (see United States v Smith, 426 F3d 567, 573—574 (2d Cir 2005), cert denied 546 US 1204 [2006]), we find that it satisfied all the elements set forth in Waller v Georgia (467 US 39, 48 [1984]). The People made a detailed and extensive ex parte showing of a serious threat to the safety of potential witnesses (see People v Frost, 100 NY2d 129 [2003]), including, among other things, a document bearing notations with ominous implications, recovered during the execution of a search warrant. Under the circumstances of the case, it was appropriate for the court to consider the People's ex parte affirmation, and its acceptance of the People's showing constituted adequate findings of fact (compare People v Carr, ___ NY3d ___, 2015 NY Slip Op 02798 [2015]). The main purposes of the identification requirement were to record the identities of persons who attended the trial so as to provide leads to possible suspects in the event of harm to witnesses, and to deter such misconduct. The minimal restriction on entry was carefully tailored to achieve those purposes.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 19, 2015

CLERK